I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

The Arizona Constitution recognizes the public right of access to court proceedings in Article 2, section 11, which requires that “justice in all cases shall be administered openly.”

Likewise, the Arizona Supreme Court has held that “the public has a constitutional and common law right of access to observe court proceedings.” Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (Ariz. 1994).

Arizona Rule of Criminal Procedure 9.3(b)(1) provides that “[a]ll proceedings must be open to the public, including news media representatives, unless the court finds, on motion or on its own, that an open proceeding presents a clear and present danger to the defendant's right to a fair trial by an impartial jury.”

The Arizona’s Public Records law, codified at A.R.S. § 39-101 to § 39-221, permits the inspection and copying of public records. Under that law, barring any potential separation of powers limitations, courts must maintain and preserve court records for inspection and copying, subject to recognized exceptions.

Arizona Supreme Court Rule 122 provides the framework for permitting the use of recording devices in the courtroom, including still and video cameras. The rule also provides limitations on the use of such devices, including the manner of coverage, permissible equipment, camera pooling and the use of personal audio recorders.

Arizona Supreme Court Rule 122.1 governs the use of portable electronic devices in a courthouse. These devices include items such as laptops, smart phones and other devices with an internet connection. This rule also limits the type of information that can be recorded.

Arizona Supreme Court Rule 123 provides that court records are generally subject to public inspection, establishes exceptions to openness, sets forth the procedural framework for requests and clarifies how certain records may be redacted or protected from disclosure.

B. Overcoming a presumption of openness

The Arizona Supreme Court has emphasized that “[d]emocracy blooms where the public is informed and stagnates where secrecy prevails. Only in a case where there is a clear, present threat to the due administration of justice or one which appeals primarily to the morbid and prurient should the right of the public to observe a court proceeding be denied.” Phoenix Newspapers v. Jennings, 107 Ariz. 557, 561, 490 P.2d 563, 567 (1971).

The Arizona Supreme Court has also found that “any order closing the court to the public must be necessitated by a compelling governmental interest and be narrowly tailored to serve that interest.” Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994). “If an order is merely a temporary limitation of access, however, it may be sustained if it is reasonable and neutral.” Id.

C. Procedural prerequisites to closure

In a criminal proceeding, the burden is on a defendant to show “a clear and present danger to the defendant’s right to a fair trial by an impartial jury.” Ariz. R. Crim. P. 9.3(b)(1); State v. Lee, 189 Ariz. 590, 601, 944 P.2d 1204, 1215 (1997).

Before disallowing camera coverage of a court proceeding, a court must make specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public:

The impact of coverage upon the right of any party to a fair hearing or trial;

The impact of coverage upon the right of privacy of any party, victim, or witness;

The impact of coverage upon the safety and well-being of any party, victim, witness, or juror;

The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding;

The adequacy of the physical facilities of the court;

The timeliness of the request;

Whether the person making the request is engaged in the dissemination of news to a broad community; and

II. Procedure for asserting right of access to proceedings and records

If access to a public proceeding is denied, a party may file a special action seeking expedited review of a court’s order restricting access. See generally Ariz. R. Special Action. P. 3 (describing bases on which a special action may be brought); see also Ariz. R. Supreme Ct. 122(d) (explaining that a “judge’s decision on a coverage request, or on an objection to coverage, is reviewable only by special action.”).

For access to public records, a person or entity must first request the records from the responsible governmental agency. If a request for copies of public records is made, the public body must provide those records “promptly.” Ariz. Rev. Stat. § 39-121.01. If the public body refuses to provide the records or does not respond to a properly submitted request, the party seeking the information may file a special action seeking access to the materials. Ariz. Rev. Stat. § 39-121.02. A party that substantially prevails in a special action to obtain records may be awarded attorneys’ fees and legal costs. See generally Ariz. R. Sup. Ct. 123 for procedures governing access to court records.

A. Media standing to challenge closure

“Members of the news media, as members of the public, have the necessary standing to judicially question” an order restricting access to a preliminary hearing in a criminal trial. Phoenix Newspapers v. Jennings, 107 Ariz. 557, 561, 490 P.2d 563, 567 (1971).

In Phoenix Newspapers, Inc. v. Otis, 413 P.3d 692, 969 (Ariz. Ct. App. 2018), the court found that a group of news organizations had standing to challenge a court order limiting what information could be published about a prosecutor in a capital case.

In KPNX-TV Channel 12 v. Stephens, 340 P.3d 1075 (Ariz. Ct. App. 2014), the court recognized the right of news organizations to challenge a court order closing the courtroom for a witness’s testimony during the sentencing phase of the Jodi Arias trial).

B. Procedure for requesting access in criminal cases

Although there are no published decisions or rules delineating the proper method to request access in a criminal case, the typical practice is to file a motion for leave to intervene for the limited purpose of securing access.

If the request is for camera coverage, the media organization must submit a timely request pursuant to Arizona Supreme Court Rule 122.

III. Access to criminal proceedings

A. In general

There is a general right to access criminal trials in Arizona. See Ariz. R. Crim. P. 9.3(b)(1) (“All proceedings must be open to the public, including news media representatives, unless the court finds, on motion or on its own, that an open proceeding presents a clear and present danger to the defendant’s right to a fair trial by an impartial jury.”).

C. Criminal trials

Criminal trials are presumptively open to the public, including members of the media. See Ariz. R. Crim. P. 9.3(b)(1). A court “can close a proceeding at the request of a defendant only when the public proceeding would create a clear and present danger to the defendant’s right to a fair trial with an impartial jury.” KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, 370, 340 P.3d 1075, 1078 (App. 2014). “If the court finds a clear and present danger, the court must then consider four constitutional factors before closing the proceedings; namely, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceeding; and the court must make findings to support the closure.” Id.

A court may close the proceedings on a limited basis—for example, to protect a victim or minor—upon a showing that the limitation is reasonable and neutral. Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994).

D. Post-trial proceedings

E. Appellate proceedings

IV. Access to criminal court records

A. In general

Generally, access to criminal court records is governed by Arizona Supreme Court Rule 123. Under Rule 123(c)(1), the Arizona Supreme Court recognizes that “[t]his state has always favored open government and an informed citizenry. In the tradition, the records in all courts and administrative offices of the Judicial Department of the State of Arizona are presumed to be open to any member of the public for inspection or to obtain copies at all times during regular office hours at the office having custody of the records.” Additionally, Rule 123(d)(2)(C) explains that any material that is not specifically closed “in the adult criminal case files maintained by the clerk of the court is open to the public, unless prohibited by law or sealed by court order.”

Rule 123(c)(1) clarifies, however, that “access to some court records may be restricted or expanded in accordance with the provision of this rule” if there are “countervailing interests of confidentiality, privacy or the best interests of the state . . . .”

In addition to Rule 123, access to certain criminal records may fall within the Arizona Public Records Law, Ariz. Rev. Stat. § 39-121, et seq. Subject to certain limitations regarding victim information or highly sensitive material (graphic crime scene photographs, for example), many criminal records may be obtained from law enforcement agencies through the Public Records Law.

B. Arrest records

Arrest records are generally considered to be public records and can be obtained through a valid request. Certain information in the records may be subject to redaction. See generally Ariz. Rev. Stat. §§ 39-123 to -125.

C. Dockets

D. Warrants, wiretaps and related materials

Under Arizona law, a search warrant “shall be open to the public as a judicial record” after execution. Ariz. Rev. Stat. § 13-3918.A. This statute provides the timeframe within which warrants shall be executed. But see Phoenix Newspapers, Inc. v. Superior Court, 180 Ariz. 159, 882 P.2d 1285 (App. 1993) (finding that the statute did not mandate public disclosure).

To the extent these materials are filed with the court, Arizona Supreme Court Rule 123 provides that they are “presumed to be open to any member of the public for inspection.” Materials may be kept under seal or otherwise secreted only upon a showing of specific facts demonstrating that disclosure is outweighed by a countervailing interest. Ariz. R. Supreme Ct. 123(c)(1).

See United States v. Loughner, 769 F. Supp. 2d 1188 (D. Ariz. 2011) (concluding that media outlets have a qualified First Amendment right to inspect search warrant materials in Tucson shootings case, and that neither privacy nor fair trial rights outweighed that that right).

E. Discovery materials

Rule 15.4(d) of the Arizona Rules of Criminal Procedure specifies that “[a]ny materials furnished to a party or counsel under Rule 15 must not be disclosed to the public, and may be disclosed only to the extent necessary for the proper conduct of the case.”

H. Post-trial records

I. Appellate records

J. Other criminal court records issues

Although Arizona’s public records law generally creates a presumption in favor of disclosure, the burden shifts to the requestor seeking to obtain the information if the record “visually depicts the image of a witness under eighteen years of age or a victim” as defined by Ariz. Rev. Stat. § 13-4401. See Ariz. Rev. Stat. § 39-121.04(A). To meet this burden, the requestor must show that “the public’s interest in disclosure outweighs the witness’s or victim’s right to privacy.” Id.

V. Access to civil proceedings

A. In general

The Arizona Supreme Court has held that “[t]here is no doubt that there exists a common law right of access to civil trials.” Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).

Generally, access to civil court records is similar to access to criminal records and is governed by Arizona Supreme Court Rule 123. Under Rule 123(c)(1), the Arizona Supreme Court recognizes that “[t]his state has always favored open government and an informed citizenry. In the tradition, the records in all courts and administrative offices of the Judicial Department of the State of Arizona are presumed to be open to any member of the public for inspection or to obtain copies at all times during regular office hours at the office having custody of the records.”

Rule 123(c)(1) clarifies, however, that “access to some court records may be restricted or expanded in accordance with the provision of this rule” if there are “countervailing interests of confidentiality, privacy or the best interests of the state . . . .”

Under Ariz. R. Civ. P. 5.4, a party seeking to seal a record in a civil case must make a heightened showing that would justify keeping otherwise public material private. More specifically, the party must show (A) “an overriding interest exists that supports filing the document under seal and overcomes the right of public access to it,” (B) a “substantial probability” of prejudice if the document is not sealed, (C) the proposed restriction is “no greater than necessary to preserve the confidentiality of the information subject to the overriding interest,” and (D) “no reasonable, less restrictive alternative exists to preserve the confidentiality of the information subject to the overriding interest.” Ariz. R. Civ. P. 5.4(c)(2).

B. Pre-trial proceedings

C. Trials

The Arizona Supreme Court has held that “[t]here is no doubt that there exists a common law right of access to civil trials.” Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).

D. Post-trial proceedings

E. Appellate proceedings

VI. Access to civil records

A. In general

Under Ariz. R. Supreme Ct. 123(d), “[a]ll case records are open to the public except as may be closed by law, or as provided in this rule. Upon closing any record the court shall state the reason for the action, including a reference to any statute, case, rule or administrative order relied upon.”

Pursuant to Ariz. R. Civ. P. 5.4, unless authorized by another statute, rule, or prior court order, a court may order that a document be sealed only, if it finds in a written order:

an overriding interest exists that supports filing the document under seal and overcomes the right of public access to it;

a substantial probability exists that the person seeking to file the document under seal (or another person) would be prejudiced if it is not filed under seal;

the proposed restriction on public access to the document is no greater than necessary to preserve the confidentiality of the information subject to the overriding interest; and

no reasonable, less restrictive alternative exists to preserve the confidentiality of the information subject to the overriding interest.

B. Dockets

C. Discovery materials

In the context of discovery, materials that are requested and obtained are not public until they are introduced as evidence or filed with the clerk of court. See Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986).

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

The media may access voir dire and may obtain a written transcript of the proceedings, but it is prohibited from photographing jurors at any time. Specifically, Rule 122(k)(2) of the Arizona Supreme Court Rules provides that “[c]ameras must be placed to avoid showing jurors in any manner.” The rule further provides that “[a]udio recordings or broadcasts of jurors’ statements or conversations are also prohibited except that a juror may expressly consent to an interview after the jury has been discharged.” Id.

B. Juror identities, questionnaires and other records

Pursuant to Rule 123(e)(10) of the Arizona Supreme Court Rules, “[t]he home and work telephone numbers and addresses of jurors, and all other information obtained by special screening questionnaires or in voir dire proceedings that personally identifies jurors summoned for service, except the names of jurors on the master jury list, are confidential, unless disclosed in open court or otherwise opened by order of the court.”

C. Grand jury proceedings and records

Grand jury proceedings are confidential pursuant to Ariz. Rev. Stat. § 13-2812. It is a class 1 misdemeanor for a person to disclose “the nature or substance of any grand jury testimony or any decision, result or other matter attending a grand jury proceeding, except in the proper discharge of official duties, at the discretion of the prosecutor to inform a victim of the status of the case or when permitted by the court in furtherance of justice.”

D. Interviewing jurors

The media is not permitted to interview trial participants while the proceedings are ongoing. See KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 256, 678 P.2d 431, 441 (1984) (“[I]nterviewing trial participants falls outside of the right of access.”). If a juror consents, the media may interview that individual after the jury has been discharged. See Ariz. R. Supreme Ct. 122(k)(2).

VIII. Proceedings involving minors

A. Delinquency

Under Rule 123(d)(1)(A) of the Arizona Supreme Court Rules, “[r]ecords of all juvenile delinquency and incorrigibility proceedings are open to the public to the extent provided for in the Rules of Procedure for the Juvenile Court or by law.”

Rule 19(A) of the Juvenile Court Rules explains that the Court shall maintain a “legal file” for each matter, and certain information within that file may be marked as “confidential.” The Rule also permits a judge to order that “all or part of the legal file” may be closed “upon a finding of a need to protect the welfare of the child or another person or a clear public interest in confidentiality.” With the exception of the portions of the file marked confidential, “the legal file shall be open to public inspection without order of the court.” Further, the “court shall state its reasons for withholding the legal file, or portions thereof, from public inspection.”

Delinquency, incorrigibility, and diversion proceedings “shall be open to the public, except upon the court’s written finding of a need to protect the best interests of a victim, the juvenile, a witness, the state, or a clear public interest in confidentiality.” Ariz. R. Juv. Ct. 19(B).

B. Dependency

Court proceedings “relating to dependent children, permanent guardianships and termination of parental rights are open to the public. A court proceeding relating to child abuse, abandonment or neglect that has resulted in a fatality or near fatality is open to the public, subject to the requirements of (E) of this rule and A.R.S. § 8-807.01.” Ariz. R. Juv. Ct. 41(A).

During the first hearing in a dependency, permanent guardianship or termination of parental rights, the court “shall ask the parties if there are any reasons the proceedings should be closed.” The court must evaluate:

Whether doing so is in the child’s best interests.

Whether an open proceeding would endanger the child’s physical or emotional well-being or the safety of any other person.

The privacy rights of the child, the child’s siblings, parents, guardians and caregivers and any other person whose privacy rights the court determines need protection.

Whether all parties have agreed to allow the proceeding to be open.

If the child is at least twelve years of age and a party to the proceeding, the child’s wishes.

Whether an open proceeding could case specific material harm to a criminal investigation.

Ariz. R. Juv. Ct. 41(E). Anyone who attends a hearing involving a minor is prohibited from disclosing personally identifiable information about the minor outside of the proceedings. Ariz. R. Juv. Ct. 41(F). Failure to abide by this rule shall be deemed contempt of court. Id.

If a proceeding has been closed to the public, an interested party may ask the court to reconsider its decision and open the proceedings. Ariz. R. Juv. Ct. 41(H).

Pursuant to Arizona Supreme Court 123(d)(1)(B), “[r]ecords of all juvenile adoption, dependency, severance and other related proceedings are closed to the public as provided by law unless opened by court order.”

C. Other proceedings involving minors

A juvenile court judge’s decision to admit the media to a hearing on whether to have a juvenile prosecuted as an adult does not violate Arizona’s constitution (requiring the holding of a juvenile proceeding “in chambers”) since historical meaning of in chambers did not entail exclusion of the public. Wideman v. Garbarino, 770 P.2d 320 (Ariz. 1989).

D. Prohibitions on photographing or identifying juveniles

“Photographing, recording, or broadcasting of juvenile court proceedings is only as allowed as by Arizona law, or as provided by paragraph (i) [celebratory or ceremonial proceedings, or while court is not in session].” Ariz. R. Sup. Ct. 122(k)(5).

E. Minor testimony in non-juvenile courts

There is no explicit prohibition on public access to matters involving testimony by a minor. As set forth in the other sections, however, a court may prohibit camera coverage to protect the best interest of a witness. See Ariz. R. Sup. Ct. 122(d)(1) and (2).

A. Tribal Courts in the jurisdiction

B. Probate

Matters in probate court are subject to the same access provisions as other courts under the Arizona Public Records law. See generally Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 274, 159 P.3d 578, 584 (App. 2007) (finding that probate court had erred in denying media access to notice of claim in matter involving a conservatorship).

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

The Arizona Supreme Court has recognized that courts may not prohibit the media from reporting on what transpired in open court. See Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 260, 418 P.2d 594, 597 (1966).

C. Gag orders on participants

The Arizona Supreme Court has held that a “media liaison order,” which limited contact by the prosecution and the defense with the press, was not an infringement on the media’s First Amendment right to cover a high-profile murder trial. KPNX Broad. Co. v. Superior Court, 678 P.2d 431, 439-42 (Ariz. 1984).

D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

One of the most common interests cited by parties in support of blocking media access to court proceedings is that coverage will prejudice the fair trial rights of the accused.

Courts have shown greater willingness to restrict (rather than prohibit) camera coverage in certain circumstances. For example, courts are more willing to limit coverage to protect minors or subjecting a witness to an invasion of privacy.

Prosecutors are increasingly moving to seal law enforcement records—public records such a body cam footage—claiming that such “evidence” may jeopardize fair trial rights or other “sensitive” investigations.

B. Cameras and other technology in the courtroom

The use of cameras and other technology in the courtroom is governed primarily by Arizona Supreme Court Rules 122 and 122.1.

Rule 122 relates to camera coverage, and explains that an appropriately submitted camera request should be granted unless the court makes specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public:

A. The impact of coverage upon the right of any party to a fair hearing or trial;
B. The impact of coverage upon the right of privacy of any party, victim, or witness;C. The impact of coverage upon the safety and well-being of any party, victim, witness, or juror;
D. The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding;
E. The adequacy of the physical facilities of the court;
F. The timeliness of the request;
G. Whether the person making the request is engaged in the dissemination of news to a broad community; and
H. Any other factor affecting the administration of justice.

Ariz. R. Supreme Ct. 122(d).

With regard to personal recording devices, Rule 122(h) provides that a person may use such a device, but must give notice to the court. A person is not required to submit a request to use a personal recording device. Recording devices, including cameras, may not be used while the judge is off the bench. Ariz. R. Supreme Ct. 122(k).

Rule 122.1 provides for the use of personal electronic devices in a courthouse and explains the limitations on their use.

C. Tips for covering courts in the jurisdiction

If requesting camera coverage, one of the most essential procedural issues is to submit the request in a timely fashion. A court may deny the request on this basis alone, and a media organization should ensure that any camera request is submitted within the timeframes mandated by the rules (e.g., “at least seven calendar dates before the trial date,” Ariz. R. Sup. Ct. 122 (c)(2)(A)).

Camera crews and other media representatives present in the court should wear professional attire at all times. Respect for the proceedings and general decorum are taken seriously.